Zhang v. County of Monterey ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 JACQUELINE ZHANG, Case No. 17-CV-00007-LHK 13 Plaintiff, ORDER SUSTAINING DEFENDANTS’ OBJECTION TO PLAINTIFF’S 14 v. DESIGNATIONS OF MARISCAL DEPOSITION TRANSCRIPT 15 COUNTY OF MONTEREY, MONTEREY COUNTY RESOURCE MANAGEMENT Re: Dkt. No. 158 16 AGENCY, and MONTEREY COUNTY PARKS DEPARTMENT, 17 Defendants. 18 In Defendants’ Objection to Plaintiff’s designation of deposition transcripts, Defendants 19 contend that Plaintiff cannot introduce deposition transcript testimony for Mark Mariscal 20 (“Mariscal”) because Mariscal is not a party to the litigation, Mariscal was not employed by the 21 County at the time of his deposition, and Mariscal will be available to testify at trial. ECF No. 158 22 at 3. 23 Federal Rule of Civil Procedure 32 provides that a deposition may be used against a party 24 on three conditions: (1) “the party was present or represented at the taking of the deposition or had 25 reasonable notice of it”; (2) “it is used to the extent it would be admissible under the Federal Rules 26 of Evidence if the deponent were present and testifying”; and (3) “the use is allowed by Rule 27 1 1 32(a)(2) through (8).” Fed. R. Civ. P. 32(a)(1). 2 Plaintiff contends that Plaintiff may rely upon Mariscal’s deposition transcript for two 3 reasons. First, Plaintiff contends that she may rely on Mariscal’s deposition transcript as a 4 deposition for an unavailable witness under Rule 32(a)(4). ECF No. 165 at 1–2. Rule 32(a)(4) 5 provides, in relevant part, that a party may use the deposition of a witness if the Court finds “that 6 the witness is more than 100 miles from the place of hearing or trial or is outside the United 7 States, unless it appears that the witness’s absence was procured by the party offering the 8 deposition.” Fed. R. Civ. P. 32(a)(4). Plaintiff contends that Mariscal resides in Southern 9 California, which is more than 100 miles from the place of the trial in San Jose, California. 10 However, the parties’ joint witness list reflects that Mariscal will testify at trial remotely. ECF No. 11 145. Mariscal’s testimony will be live, and Mariscal will be subject to cross-examination. 12 The Court notes that Mariscal is appearing remotely during the COVID-19 pandemic. The 13 San Jose courthouse, where trial will occur, is located in Santa Clara County. In Santa Clara 14 County, as of June 6, 2021, there have been 119,553 confirmed COVID-19 cases, and 2,143 15 people have died from COVID-19. Johns Hopkins University, COVID-19 Status Report, available 16 at https://bao.arcgis.com/covid-19/jhu/county/06085.html. Furthermore, of the jurors who 17 completed the jury questionnaire and have been summoned for jury selection in the instant case, 18 over 50% stated that they were concerned about getting sick with COVID-19 if called to serve as a 19 juror, and slightly under 50% stated that they were uncomfortable being in a very large courtroom 20 with 20-30 people. See ECF No. 190. 21 In order to prevent spread of COVID-19, the Coronavirus Aid, Relief, and Economic 22 Security (“CARES”) Act authorizes federal courts to hold criminal proceedings remotely as long 23 as the Court makes certain findings. See H.R. 748 § 15002(b)(2). Moreover, General Order 72-6 24 provides that court proceedings should be held via telephone or videoconference with a limited 25 number of exceptions. See Gen. Order 72-6. 26 The Court notes that 5 out of 18 witnesses in the instant case are testifying remotely, 27 2 1 including one of Plaintiff’s witnesses. See ECF No. 145. These witnesses are testifying live and 2 will be subject to cross-examination. Accordingly, the Court concludes that these witnesses are not 3 unavailable under Rule 32(a)(4). Thus, Mariscal is not unavailable under Federal Rule of Civil 4 Procedure 32(a)(4). See Rubio v. Smith, 114 F.3d 1195 (9th Cir. 1997) (noting that “[t]he right to 5 cross-examination is fundamental to the trial process”); see also United States v. Swisher, 360 F. 6 App’x 784, 786 (9th Cir. 2009) (affirming district court’s ruling to allow witness to testify by 7 phone). 8 Second, Plaintiff contends that she may rely upon Mariscal’s deposition transcript as a 9 deposition of a party under Rule 32(a)(3) or as an admission of a party pursuant to Federal Rule of 10 Evidence 801(d)(2)(A) or (C). ECF No. 165 at 2–3. Rule 32(a)(3) provides that “[a]n adverse 11 party may use for any purpose the deposition of a party or anyone who, when deposed, was the 12 party’s officer, director, managing agent, or designee under Rule 30(b)(6) or 31(a)(4).” Fed. R. 13 Civ. P. 32(a)(3) (emphasis added). Mariscal himself is not a party to this litigation. Moreover, 14 when Mariscal was deposed, he was no longer working for the County. Accordingly, he was not 15 the County’s “officer, director, managing agent, or designee.” Fed. R. Civ. P. 32(a)(3). For the 16 same reason, Mariscal’s deposition testimony was not an admission of a party pursuant to Federal 17 Rule of Evidence 801(d)(2)(A) or (C). Thus, Plaintiff may not rely on Mariscal’s deposition 18 transcript as a deposition of a party under Rule 32(a)(3) or as an admission of a party pursuant to 19 Federal Rule of Evidence 801(d)(2)(A) or (C). 20 Accordingly, Defendants’ Objection to Plaintiff’s designations of Mariscal’s deposition 21 transcript is SUSTAINED. 22 IT IS SO ORDERED. 23 24 Dated: June 7, 2021 25 ______________________________________ LUCY H. KOH 26 United States District Judge 27 3